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State Judicial Administration of Ukraine regulated the issue of holding videoconferences outside the court premises
On April 8, the State Judicial Administration of Ukraine (SJA) approved the Procedure for working with videoconference tools during a court session in administrative, civil and commercial processes with participation of parties outside the court premises (the Procedure).
The Procedure establishes the following rules:
- holding court sessions in videoconference regime using EasyCon system;
- in order to take part in the meeting, a participant must log in the system using an electronic digital signature (EDS). Participation of unauthorized participants is impossible;
- at the beginning of the meeting, the participant should show the identity document to the camera.
The Procedure was approved with a view to detailing the provisions of the Law “On Amending Certain Legislative Acts aimed at Ensuring Supplementary Social and Economic Guarantees in Relation to the Distribution of Coronavirus Disease (COVID-19)” (which entered into force on April 2), which in particular provided for the right of participants in civil, commercial and administrative cases to take part in videoconference court sessions outside the court premises (please refer to political points of events dated March 23-30).
First, the Procedure determines EasyCon service as the only possible video conferencing system. According to the announcement of the Press Center of Judiciary of Ukraine, the video conferencing application may be chosen at the discretion of the court, but this does not follow from the Procedure, which defines EasyCon as the only video conferencing system.
Secondly, the EasyCon system has several disadvantages. As the CPLR expert Roman Kuybida found out, at the moment of approval of the Procedure, the system operated on a paying basis and was not publicly accessible. It is not yet clear whether the participants of the litigation procedures will also need to pay for it. The system can be used only upon availability of an EDS, which is directly contrary to the law, as the latter provides for the authorization of participants without digital signature in other ways: by means of an identity document or in a manner to be determined by the SJA (it has not done so yet). In addition, the system only accepts EDS issued by 6 providers, not allowing, for example, to use a signature issued by Privatbank (the bank’s customers can obtain it online).
Third, the Procedure does not specify the mechanism for broadcasting online court sessions, which is the responsibility of the court if all participants are involved in a videoconference regime. The lack of broadcasting violates the constitutional principle of the publicity of the trial.
According to CPLR experts, the Procedure needs substantial improvement, first of all, in terms of empowering the courts to use other publicly available videoconference systems that are suitable for remote court procedures, as well as providing the possibility of remote participation for persons who do not have an EDS. In addition, an online broadcasting of videoconference court hearings should be provided.
The court held its sessions using Zoom
On April 8, the Seventh Administrative Court of Appeal announced that it had two videoconference sessions outside the court premises, which were organized using ZOOM application. This is the first report of holding a court session in Ukraine with the use of publicly available video conferencing program.
CPLR experts welcome the introduction of remote case consideration practices through publicly available applications. This approach is becoming popular in many countries in the face of restrictive measures to prevent the spread of COVID-19. However, other countries that have moved to remote court procedures due to quarantine measures ensure public hearings, as this is an integral part of the right to a fair trial.
Unfortunately, there is no announcement on the web site / FB page / Youtube channel of the Court of Appeal or the portal “Judiciary of Ukraine” about the broadcasting of these sessions, there is no information about the broadcasting on the Internet.
As a general rule, court consideration procedure is open. A court session must be announced and, if all parties participate in the videoconference regime, it must be broadcast on the Internet. Violation of the principle of publicity of trial is inadmissible and greatly undermines the lawfulness of the decision in the case.
When most court procedures are forced to switch to videoconference regime, a solution may be to broadcast them on Youtube. Such broadcasting was actively exercised yet before the quarantine on the webpage of “Judiciary of Ukraine”. There is a technical possibility of broadcasting a Zoom video conference on Youtube.
High Council of Justice operates in a closed regime, which is contrary to the law
On April 9, the High Council of Justice (HCJ) amended its own Rules of Procedure, which provided for participation in Council meetings or Disciplinary Board meetings in a videoconference regime using own technical facilities of participants. This should be done with the use of EasyCon service, which was designated by the State Judicial Administration of Ukraine on April 8 as a platform for videoconferences in civil, commercial and administrative cases.
Earlier, on March 18, the HCJ reported that it “restricted access of visitors to the premises of the High Council of Justice, except for emergency medical services, couriers and service personnel of the High Council of Justice’s systems and networks (in urgent cases)”, which became an obstacle for media representatives and other listeners to attend open meetings of the Council and its bodies.
Part 1 of Article 30 of the Law “On the High Council of Justice” establishes a general rule that meetings of the Council and of the Disciplinary Board shall be held openly. That is, the Law guarantees the right of every person to be present at Council meetings. However, the HCJ considers all issues in a closed-door manner in the absence of any possibility for journalists and the public to access the meetings.
Allowing all parties involved in the HCJ proceedings (and not only judges, as foreseen in the previous version of the Rules of Procedure) to participate in the meetings in videoconference regime, including through the use of their own technical facilities, is a necessary and timely quarantine measure. However, the changes made do not take into account the need to ensure the implementation of the requirement of the law on openness of the HCJ meetings and its bodies.
In the context of quarantine restrictions, the HCJ should resume online broadcasting of its meetings and meetings of disciplinary boards. The HCJ has the necessary hardware and software as it regularly broadcasted its meetings from 2015 until November 2019 (see political points of the events dated 11-18 November 2019), until it amended its Rules of Procedure, limiting broadcasting only to cases where it was required by all parties to the proceedings.
Violation of the requirement of openness undermines the legitimacy of the decisions made by the HCJ and its bodies. To address this problem in the quarantine circumstances, the HCJ needs to use the available technical capabilities to conduct online broadcasting of its meetings.